My Own Modest Proposal

Over at The Atlantic, via Instapundit, we have a call for judicial fixed terms and, more importantly, a single such term.  Specifically the author advocates a single 18-year term for appointees to the U.S. Supreme Court. Occasion for the cogitations is the 60th anniversary of the Brown v. Board of Education (sometimes referred to as Brown I) decision which ruled that as at least to public schools, separate was inherently unequal and thus could never satisfy the Fourteenth Amendment’s requirements.  Our author praises the unanimous decision, specifically for the unified front it gave the judiciary in the face of the inevitable ructions which were sure to follow it.  I’d not heard this part, that the court took two entire years to craft a decision that all nine justices could agree on.  The author describes a forum he attended at Yale at which a group of lawyers who had been clerks to those justices talked about the deliberative process and so forth.  All very cozy, and I’m sure it was full of mutual congratulation, as such things drearily are.

What’s not mentioned is the extent to which the process that produced the Brown decision departed from all recognized standards of judicial ethics.  Years ago in law school I first ran across mention of this; not anticipating the internet (perhaps because I didn’t work for Algore at the time?) I didn’t note the citation to it.  But what happened was this:  Brown I was argued twice.  Thurgood Marshall argued for the plaintiffs and John Davis (of Davis & Polk) for the defendant school board.  What I read way back in law school was that at that first argument Davis kicked Marshall’s ass all over the courtroom.  Davis was the pre-eminent Supreme Court litigator of his day; my understanding is that to this day he holds the record for most cases won in that court.  Marshall was just no match for him.  It was Frankfurter who wanted to have the case re-argued, a decision usually presented as being a stalling tactic for the court while it tried to cobble together a unanimous opinion.  But it actually seems that there was another, more sinister purpose:  The order for re-argument “invited” the federal government to submit an amicus brief.  Frankfurter did not disclose to his colleagues that he had been and proposed to remain in close contact with a former clerk at the solicitor’s office, discussing and in fact feeding him in painstaking detail what arguments to use.

Here is one mention of the incident (first page only, the balance apparently being behind paywall).  And here is another. And here is another, over at SSRN.  Since the source of all these is the same — the former clerk himself, in an article published in 1987 in the Harvard Law Review — there doesn’t seem to be much doubt that it happened.  To put it mildly, “[t]his sort of ex parte communication is considered a violation of legal ethics.”  This apparently did not distress either justice or clerk:

“‘I have no easy, snappy response to that view.  In Brown I didn’t consider myself a lawyer for a litigant.  I considered it a cause that transcended ordinary notions about propriety in a litigation.  This was not a litigation in the usual sense.  The constitutional issue went to the heart of what kind of country we are, what kind of Constitution and Supreme Court we have: whether, almost a century after the fourteenth amendment was adopted, the Court could find the wisdom and courage to hold that the amendment meant what it said, that black people could no longer be singled out and treated differently because of their color, that in everything it did, government had to be color-blind.’ He said that he would not defend his discussions with Frankfurter in technical terms.  ‘I just did what I thought was right,’ he said.”

Well.  How about that?  He just followed his “revolutionary consciousness,” to use the expression favored by his philosophical forerunners, the Cheka revolutionary tribunals who scourged the land in 1918-21.

Why are the above reminiscences by a lawyer who should have been disbarred, about a justice who ought to have been impeached, important now?  Because our author over at The Atlantic specifically praises the court that rendered Brown for being politicians.  “The Warren Court that decided Brown had five members who had been elected to office—three former U.S. senators, one of whom had also been mayor of Cleveland; one state legislator; and one governor. They were mature, they understood the law, but also understood politics and the impact of their decisions on society. As a consequence, they did not always vote in predictable fashion.”  He contrasts that with today’s court:  “Now, zero members of the Supreme Court have served in elective office, and only Stephen Breyer has significant experience serving on a staff in Congress. Eight of the nine justices previously were on U.S. courts of appeal. Few have had real-world experience outside of the legal and judicial realm.”

Our author does not stop at just praising specifically politicized jurisprudence when he agrees with the outcome.  He excoriates what he calls politicized jurisprudence when he disagrees with it.  The lengths to which he goes are truly remarkable.  Let’s let him speak for himself:

“Roberts is political in the most Machiavellian sense; he understood the zeitgeist enough to repeatedly assure the Senate during his confirmation hearings that he would strive to issue narrow opinions that respected stare decisis and achieved 9-0 or 8-1 consensus, even as he lay the groundwork during his tenure for the opposite. His surprising ruling on the Affordable Care Act was clearly done with an eye toward softening the criticism that was sure to come with the series of 5-4 decisions on campaign finance and voting rights that lay ahead.”

Get that?  Way back in 2012 Roberts was just a-scheming away, smoothly allaying fears that his politicized judgments would be obnoxious for the lefties, all the while plotting to give free rein to his politicized jurisprudence to run the opposite (wrong) way, because he just knew that all them decisions was going down on 5-4 splits.  To borrow a line from Peanuts, good grief.  Notice, by the way, that he’s also implicitly accusing his dear lefties on the court of the same sin; how else could Roberts have just known that there would be four dissenters in each of those cases?

The solution is to limit tenure on the high court bench to a single 18-year term.  Stagger the terms, so that you won’t get George W. Bush some future president able to stack the entire court during his term(s).

Being the good lefty, our author overlooks the most powerful argument in favor of limiting the time anyone gets to park himself on that bench, even though he states it himself.  To see what I’m talking about, let’s do just a teensy-weensy little editing:  “Few have had real-world experience outside of the legal and judicial realm.”  And there you have the central indictment of the judiciary, certainly at least the federal bench at its senior levels.  Huge numbers of these people are life-time government hacks (no other way to describe them).  They’ve not had to make payroll from their own pocket.  They’ve not had to choose whether to let someone go, cut everyone’s pay a bit, or not make their own house payment.  They’ve not lain awake nights praying that they can get a case settled before their child needs braces, or that the leaking head gasket on that old car will hold out just a few weeks more, so they can replace the office computer server.  In short, they have only the most theoretical notion that any mommocked-up decision of theirs will have any material consequences.  They’re philosopher-kings.

So here’s my own modest proposal.  Every judicial officer (that would include the non-Article III magistrate judges, bankruptcy judges, and administrative law judges) would have an allocation of 25 total years’ government or “non-profit” employment of any kind at any level.  Each day he spends at the public or taxpayer-subsidized teat reduces by one day the length of time he is eligible to be a judicial officer.  If he’s appointed at age 30, then at age 55 he’s off the bench, for good.  If he’s appointed to the bench at age 30, hangs around seven years, and then goes and gets a real job, at age 57 he’s got 18 years of eligibility left.  And in the intervening twenty years he’s got to see how badly things get screwed up for genuine people when philosopher-kings make a pig’s breakfast of their ruminations.  If he goes to work for some cushy “non-profit” “advocating” for “justice” or whatever the hell those outfits do for 15 years, then he gets 10 years.  It ensures turnover and it ensures, to the extent possible at all, that we will have seasoned, mature jurists and not palace eunuchs confusing their whims with constitutional mandate as is presently the case.

[Update (24 May 14):  I suppose I ought to add that segregation needed to go.  I’m not sure I agree with the proposal that separate is inherently unequal (too many counter-factuals can be heaved onto the counter for inspection for that proposition to stand, starting with the Dunbar High School that Thurgood Marshall attended).  No less-respected scholar than Herbert Wechsler famously invited the odium of all the Right Thinkers by declaring that he had racked his mind and could not come up with any logically defensible basis for the Brown ruling.  On the other hand there sure as hell is no honest argument that “separate,” as practiced by those who did so, had for its sole purpose and pretty uniform outcome “unequal.”

I think there were a very great many ways to explode the system of segregation across all of state and local law that didn’t involve doing what the Supreme Court did in Brown (which, as Ilya Somin points out, didn’t actually come out and say it overruled Plessy).

I ought to confess that I’ve never read a book-length treatment of the history of the litigation campaign that produced Brown.  My understanding, however, is that the civil rights litigants had spent years pecking piecemeal at the component systems of segregation and came to the realization that they’d spend eons doing so if they carried on that way.  So they changed strategy and went for the root-and-branch approach.  The way they went about that required the court to adopt the argument — factually incorrect and legally unsupported — that separate was inherently unequal.

Rather than do what it did, how much less violence to law and logic would it have been for the court simply to change how it read the word “person” in the Fourteenth Amendment and its implementing legislation?  I don’t do civil rights litigation (too much illogic to it), but my understanding is that as to “official” government action, the courts have gone to great lengths to avoid characterizing states, their political subdivisions, agencies, and instrumentalities as such to be “persons acting under color of state law.”  That’s always puzzled me because I cannot for the life of me figure out how that can possibly be correct.  If you say that “person” cannot include a juridical person then how the hell do you extend the operation of the Civil Rights Act of 1964 to prohibit action by corporations?  So we agree that juridical persons can be “persons” for purposes of these laws.  Why should some juridical persons be “persons” but not others?  Where is the defensible point of distinction?  The court could simply have said something along the lines of, “OK, we rule that states, their political subdivisions, agencies, and instrumentalities are ‘persons’ for all purposes of the Fourteenth Amendment.  We further rule that a person’s failure to ensure that all officials, agencies, political subdivisions, and others answerable to that person extend the protections of the Fourteenth Amendment to all individuals is a ‘denial’ of equal protection or due process, as applicable, to the same extent as if that person had acted in his, her, or its own right.”

Now observe what strategic avenues that simple change in reading opens up.  For starts, you’re down to 50 lawsuits, tops, against 50 states.  In those suits you can further use all the wrinkles and fillips of states’ laws and practices to demonstrate not so much that any particular component of a state’s actions violates the constitution, but to show the comprehensive pattern of in-fact behavior that the states were pursuing for the purpose and with the effect of denying equal protection and due process rights.  You don’t have to show that each last penny-ante elementary school doesn’t have X textbooks per pupil instead of Y.  All you have to show is that this is a prevailing pattern and the effects of the pattern where it exists.  You show the conditions in segregated jails and prisons.  You show the funding patterns and student outcomes of segregated colleges.  And so forth.  This then allows the court to find that, irrespective of what may or may not be the theoretical possibilities of segregation, the actual behaviors demonstrated, taken separately and in the aggregate, constitute a clear, intentional, and effective attempt to violate the constitution.

Going that route doesn’t require you to rule contrary to observable fact.  It doesn’t require you to grind your way piecemeal, in separate litigation, through the entire apparatus of state and local government.  It recognizes the fact that a law nominally neutral on its face can easily be so administered as to violate the constitution’s mandates and prohibitions (and by the way, that does not mean that it blesses bullshit arguments like “disparate impact” analysis).  And it recognizes the conspiratorial element in the entire Jim Crow project.]

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